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December 4, 2023
DPIC releases new report focused on racial history of Missouri’s death penalty
As reported in this DPIC press release, "the Death Penalty Information Center (DPIC) released a report that documents how racial bias and violence affected the past use of the death penalty in Missouri and how that history continues to influence the current administration of capital punishment in the state." The full 43-page report, titled "Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today," is available here. The executive summary can be found here, and here is how it begins:
Missouri is one of a handful of states that has consistently executed people in the last five years. In 2023, Missouri executed four people. Understanding the historical application of the death penalty in Missouri helps our understanding of how capital punishment is used today.
Historically, Missouri’s Death Penalty Was Applied Discriminatorily Based on Race
Decades before Missouri gained statehood, the territory adopted capital punishment laws that were applied based on race. There were at least four crimes that could only be tried capitally if committed by an enslaved person. After Missouri became a state in 1821 and had adopted superficially race-neutral capital punishment laws, the death penalty continued to be applied discriminatorily: enslaved people were four times more likely to be executed than white Missourians before 1865.
Missouri Has a Substantial History of Racial Violence Directed at Black Missourians
The first documented lynching in U.S. history happened in Missouri in 1838. By the late 1800s, racial terror lynchings had increased in regularity, particularly in Southern, former slave-holding states. Throughout the 19th and 20th centuries, at least 60 Black Missourians were killed in lynchings, making it the state with the second highest number of racial terror lynchings outside of the South.
Although the number of lynchings declined, public executions continued in Missouri longer than all but one other state. Public executions were a form of racial violence: there are examples of sheriffs providing execution attendees with souvenirs such as pieces of the ropes used to hang Black people and even the victim’s body parts. After a quadruple execution in St. Louis, a drug store owner was permitted to display the severed head of a Black person who was executed in his shop. The constant reminders of brutal lynchings and executions were used by white people to continually threaten and intimidate Black people.
December 4, 2023 at 08:55 PM | Permalink
Comments
A new entry for the most ridiculous entry on this blog.
I don’t particularly care about what happened in the 1860’s.
Then again, perhaps there is a silver lining. The minimum wage, for example, was born out of racism. As was The Great Society.
Maybe we can cut a deal.
Posted by: TarlsQtr | Dec 5, 2023 2:33:33 AM
MasterTarls: Because originalism is now all the rage in judicial interpretations of US Constitution, I suspect we will be seeing more and more reports making more and more claims about social and legal matters in the 1780s and the 1860s and other supposedly legally significant periods in history.
Posted by: Doug B | Dec 5, 2023 10:32:51 AM
Doug --
If originalism is to be driving the train from now on, the debate about the constitutionality of the DP is over, and the DP won. (To be honest, that debate is all but over anyway). At the time of the Founding, the DP was applied to many more crimes, and with many fewer safeguards, than exist today.
Posted by: Bill Otis | Dec 5, 2023 10:45:58 AM
Though I a not an originalist, Bill, I sense from cases like Ramos and some of the post-Bruen Second Amendment caselaw that there is a lively debate over whether laws with clear racist histories ought to be a central part of originalist analysis. I am not sure if you have a view on whether laws with clear racist histories get discounted or get full credit in originalist analysis; but if some originalists have concerns about reliance on racist legal histories, it strikes me that it could be important to have more historical work seeking to unpack which parts of our legal histories are clearly racist.
Posted by: Doug B | Dec 5, 2023 12:58:39 PM
Doug,
It’s absurd to attach this to “originalism.” Again, even I am not cynical enough to claim that TODAY, the minimum wage is a racist plot to keep the black man down even if it does exactly that.
It’s just bad economics.
Nor is the executioner flipping the switch while thinking, “We got another black guy!”
Posted by: TarlsQtr | Dec 5, 2023 1:10:11 PM
Doug --
If the Left were something other than all race all the time, it might be worthwhile to ponder your invitation. However, when it's a guaranteed, pre-fab conclusion that the Left will find X (X being anything their policy preferences disfavor) to be racist, I'll pass. The DP was far more widely used at the Founding that it is now (e.g., George Washington used it on a deserter from the Continental Army). If originalism actually means originalism, the constitutional propriety of the DP is unassailable.
Posted by: Bill Otis | Dec 5, 2023 10:33:29 PM
I found the discussion of this issue--originalism when it's racist--in Rahimi to be pretty fascinating. I would think that some constitutional value besides originalism has to answer when originalism has to be disavowed. Preloger, a brilliant advocate (not sure if she is among the Left) had a ready theory. Are there other theoretical frameworks out there? Scholarship on this point we should all be reading? Some people think that originalism is an excuse to find "X (X being anything [the right's] policy preferences favor/disfavor)." Having a coherent theory about when to not defer to the founders (apart from policy preferences) is a necessary aspect of any counterargument. Those dudes excluded way more than half of all adults from democratic recognition...
The larger question of the founders' limitations--be they on race or science or other views that are probably best described as being a product of their times--is a non-trivial challenge for originalism.
For my money, a clear limit would be the post-Civil War amendments as remaking the constitutional order. But that only seems like a starting point. Surely a war and constitutional amendment are not necessary to update our view of, say, dignity and equality. This is not my area of expertise, but I think lots of lawyers are interested in sorting through how to know when, within an originalist framework, the founders' outdated views should be set aside.
Posted by: John Mills | Dec 6, 2023 11:09:45 PM
Hey John: I have see a few references to this article by Jacob Charles on this topic: "The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History," 73 Duke Law Journal 67 (2023). I share your sense that these issues are now quite important for a range of criminal justice topics.
Posted by: Doug B | Dec 7, 2023 9:34:22 AM
A lot depends upon whether you mean original intent or original meaning when you are talking about originalism. It also depends on how you read the equal protection clause -- are you looking at motives or effect.
There is also the complicating factor of 1867 and the Fourteenth Amendment. While distasteful, prior to 1867, discrimination on the basis of race by the government was as legal as church on Sunday. Once the Fourteenth Amendment passed, states had the option of repealing discriminatory laws in their entirety or simply repealing the discriminatory parts of the law. To use a different issue, if there was a statute barring African-Americans from purchasing liquor on Sunday, a legislature meeting in 1868 could either repeal that law (allowing everyone to purchase liquor on Sunday) or rewrite the law so that it applied to everyone (nobody gets to purchase liquor on Sunday). While the original law might have targeted minorities, the new law did not, and the revision would have "cured" the original bad (but legal at the time) motivation.
Once you get past 1867, in this case, the issue becomes whether the discriminatory use of the law would support a facial challenge to the statute (or merely an as applied challenge). I think that most textualists -- applying both the plain language of the Fourteenth Amendment and the challenged statute -- would say that the abuse of a statute merely justifies an as applied challenge as the statutory scheme itself is valid.
Of course, the bigger problem with original meaning textualism is that it imagines a consensus understanding of provisions when there was no such consensus. Cherry picking court cases in the years prior to the adoption of the provision in question does not get around the cases pointing the other way. In short, textualism and original meaning is often a way to try to hide the interpretor's bias rather than a means of avoiding the interpreter putting their thumb on the scale to get the desired result.
Posted by: tmm | Dec 7, 2023 3:33:08 PM
